Another look needed for crimes by children in wake of Blessington, Elliott case

By Daniel Webb

23 November 2014 — 10:32pm

Bronson Blessington and Matthew Elliott were 14 and 16 respectively when they participated in the 1988 rape and murder of Janine Balding, one of the most shocking and abhorrent crimes in NSW history.

They received life sentences. Under the law at the time that effectively meant they would serve very lengthy periods in prison while retaining some slim prospect of being considered for release in the distant future if they were assessed as no longer posing a risk to the community.

Janine Balding was raped and murdered by a gang of five youths on 8 September 1988.

Their life sentences reflected the gravity of their crime. Their slim prospects of eventual release reflected their special status as children.

That all changed when, about a decade after they'd been sentenced, the NSW Government embarked on a campaign of retrospective law reform to ensure Blessington and Elliott would, in the words of then Premier Bob Carr, remain "cemented in their cells" for the rest of their lives.

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It is a well-established principle of international human rights law that children shouldn't be locked up without any meaningful prospect of ever being released.

That is the fundamental principle at the heart of the United Nations Human Rights Committee decision against the life imprisonment of these two. Apart from a few states in the United States (which has not ratified the Convention on the Rights of the Child), Australia is the only country in the world that still has children imprisoned forever without any real possibility of parole.

Underpinning international law's long-standing prohibition on life without parole for children is the recognition that while they can commit the same crimes as adults, their culpability and capacity for rehabilitation are fundamentally different.

Children are still developing physically, mentally and emotionally. They don't have adults' ability to reason, evaluate consequences, resist peer pressure or control impulses. Their ability to empathise is also not yet fully developed, which is partly why in times of war some of the most heinous acts are committed by child soldiers.

It is precisely because children are not yet "grown up" that we don't let them drive cars, consent to certain medical procedures, vote or buy alcohol or cigarettes. We recognise their relative immaturity in denying them certain rights and responsibilities. We should equally recognise it when they commit crime.

Our instinctive reaction to particularly horrific crimes by children may be to simply lock them up and hurl the key as far away as humanly possible. But international law requires a more considered response. While it doesn't require setting a specific release date, it does reject locking children up forever.

Special recognition of the status of child offenders is especially important in cases of children who have themselves been subjected to truly shocking exploitation, abuse, poverty and crime, as Blessington and Elliott had been. Both were violently and repeatedly beaten in their childhood homes. Both were sexually abused by persons in positions of power and trust. Both were homeless. Both had a range of cognitive and behavioural problems stemming from such incredibly traumatic childhoods.

Blessington and Elliott clearly perpetrated a grave injustice. They also endured several themselves.

While the public outrage at their crime was justified, the subsequent campaign of populist and retrospective law reform was not. These reforms did not make the community safer - Blessington and Elliott were already serving life sentences and had only slim prospects of being released if and when they were ever considered to no longer pose a risk. Nor did those reforms right the wrong which had been perpetrated.

They served only to take what was an appropriately firm response to a horrible crime beyond the bounds of international human rights law.

The UN's decision confirms it was a violation of the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child for the NSW Government to forever exclude Blessington and Elliott's slim prospects of release. Doing so retrospectively a decade after they had been sentenced also undermined a fundamental tenet of the rule of law.

In compliance with the UN decision, the offending NSW legislation needs to be amended. The amendment doesn't need to provide for Blessington and Elliott's release. It does, however, need to ensure that in all cases involving crimes by children the possibility of release isn't completely and permanently excluded.

Daniel Webb is the Director of Legal Advocacy at the Human Rights Law Centre.